Practice question
In an international dispute, a judge dislikes the result of a clear applicable legal rule. The judge invokes a personal sense of fairness without identifying any recognized legal principle, relevant conflict rule or party agreement to decide ex aequo et bono. Counsel labels that preference a general principle under Article 38(1)(c). What is the correct assessment?
- A personal fairness preference alone does not establish the recognized legal source or the separate Article 38(2) authorization
- Every personal preference automatically becomes international law
- Article 38(1)(c) removes the recognition requirement
- The parties' lack of agreement automatically proves agreement
- Only the favored party's wish matters
Legal references
- Statute of the International Court of Justice, Article 38(1)(c), (1)(d) and (2): https://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf
- International Law Commission, Conclusions on general principles of law (text adopted on second reading April 27, 2026), Conclusions 2–11: https://legal.un.org/ilc/texts/instruments/english/draft_articles/1_15_2026.pdf
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